October 8, 2013
Law360 reports in an article titled " Calif. Ruling Offers New Tool To Fight Food Labeling Claims" that Kelley Drye partner Sarah Roller and associate Donnelly McDowell represented the defendants in the case Mary L. Simpson v. The Kroger Corp. et al. The California appeals court's decision backing the dismissal of this food labeling class action widens a much-needed route to victory for companies facing the ubiquitous litigation: the contention that no reasonable consumer would be misled by a labeling claim.
On September 25, 2013, in a published decision, the California Court of Appeal affirmed the dismissal of a consumer class action at demurrer against Challenge Dairy Inc. and Kroger Inc. The class action alleged that the labeling of Challenge's "Spreadable Butter With Canola Oil" product was false and misleading because the label used the word "butter" to name a food that is not a 100% butter product.
The three judge Appellate Court panel found that 1) Plaintiff's claims brought under California's Milk and Milk Processing Act were preempted by the Federal Food, Drug, and Cosmetic Act; and 2) the Plaintiff's motion to add additional alleged claims under California's Sherman Act had been properly denied because no reasonable consumer could have been deceived by the labeling of the product.